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environmental law

Encyclopædia Britannica Article

environmental law

A river in Sichuan province, China, polluted by a paper mill.David and Peter Turnley/Corbis

principles, policies, directives, and
regulations enacted and enforced by local, national, or international
entities to regulate human treatment of the nonhuman world. The vast
field covers a broad range of topics in diverse legal settings, such as
state bottle-return laws in the United States, regulatory standards for
emissions from coal-fired power plants in Germany, initiatives in China
to create a “Green Great Wall”—a shelter belt of trees—to protect
Beijing from sandstorms, and international treaties for the protection
of biological diversity and the ozonosphere. During the late 20th
century environmental law developed from a modest adjunct of the law of
public health regulations into an almost universally recognized
independent field protecting both human health and nonhuman nature.

Throughout history national governments have
passed occasional laws to protect human health from environmental
contamination. About AD 80
the Senate of Rome passed legislation to protect the city's supply of
clean water for drinking and bathing. In the 14th century England
prohibited both the burning of coal in London and the disposal of waste
into waterways. In 1681 the Quaker leader of the English colony of
Pennsylvania, William Penn, ordered that one acre of forest be
preserved for every five acres cleared for settlement, and in the
following century Benjamin Franklin led various campaigns to curtail
the dumping of waste. In the 19th century, in the midst of the
Industrial Revolution, the British government passed regulations to
reduce the deleterious effects of coal burning and chemical manufacture
on public health and the environment.

Prior to the 20th century there were few
international environmental agreements. The accords that were reached
focused primarily on boundary waters, navigation, and fishing rights
along shared waterways and ignored pollution and other ecological
issues. In the early 20th century, conventions to protect commercially
valuable species were reached, including the Convention for the
Protection of Birds Useful to Agriculture (1902), signed by 12 European
governments; the Convention for the Preservation and Protection of Fur
Seals (1911), concluded by the United States, Japan, Russia, and the
United Kingdom; and the Convention for the Protection of Migratory
Birds (1916), adopted by the United States and the United Kingdom (on
behalf of Canada) and later extended to Mexico in 1936. In the 1930s
Belgium, Egypt, Italy, Portugal, South Africa, Sudan, and the United
Kingdom adopted the Convention Relative to the Preservation of Fauna
and Flora in their Natural State, which committed those countries to
preserve natural fauna and flora in Africa by means of national parks
and reserves. Spain and France signed the convention but never ratified
it, and Tanzania formally adopted it in 1962. India, which acceded to
the agreement in 1939, was subject to the sections of the document
prohibiting “trophies” made from any animal mentioned in the annex.

Beginning in the 1960s, environmentalism became
an important political and intellectual movement in the West. In the
United States the publication of biologist Rachel Carson's Silent Spring
(1962), a passionate and persuasive examination of chlorinated
hydrocarbon pesticides and the environmental damage caused by their
use, led to a reconsideration of a much broader range of actual and
potential environmental hazards. In subsequent decades the U.S.
government passed an extraordinary number of environmental
laws—including acts addressing solid-waste disposal, air and water
pollution, and the protection of endangered species—and created an
Environmental Protection Agency to monitor compliance with them. These
new environmental laws dramatically increased the national government's
role in an area previously left primarily to state and local regulation.

In Japan rapid reindustrialization after World
War II was accompanied by the indiscriminate release of industrial
chemicals into the human food chain in certain areas. In the city of
Minamata, for example, large numbers of people suffered mercury
poisoning after eating fish that had been contaminated with industrial
wastes. By the early 1960s the Japanese government had begun to
consider a comprehensive pollution-control policy, and in 1967 Japan
enacted the world's first such overarching law, the Basic Law for
Environmental Pollution Control. Not until the end of the 20th century
was Minamata declared mercury-free.

Thirty-four countries in 1971 adopted the
Convention on Wetlands of International Importance Especially as
Waterfowl Habitat, generally known as the Ramsar Convention for the
city in Iran in which it was signed. The agreement, which entered into
force in 1975, now has nearly 100 parties. It required all countries to
designate at least one protected wetland area, and it recognized the
important role of wetlands in maintaining the ecological equilibrium.

Following the United Nations Conference on the
Human Environment, held in Stockholm in 1972, the UN established the
United Nations Environment Programme (UNEP) as the world's principal
international environmental organization. Although UNEP oversees many
modern-day agreements, it has little power to impose or enforce
sanctions on noncomplying parties. Nevertheless, a series of important
conventions arose directly from the conference, including the London
Convention on the Prevention of Pollution by Dumping of Wastes or Other
Matter (1972) and the Convention on International Trade in Endangered
Species (1973).

Branches from a tree in Germany's Black Forest show needle loss and yellowed boughs caused by acid …Ted Spiegel/Corbis

Until the Stockholm conference, European
countries generally had been slow to enact legal standards for
environmental protection—though there had been some exceptions, such as
the passage of the conservationist Countryside Act in the United
Kingdom in 1968. In October 1972, only a few months after the UN
conference, the leaders of the European Community (EC) declared that
the goal of economic expansion had to be balanced with the need to
protect the environment. In the following year the European Commission,
the EC's executive branch, produced its first Environmental Action
Programme, and since that time European countries have been at the
forefront of environmental policy making. In Germany, for example,
public attitudes toward environmental protection changed dramatically
in the early 1980s, when it became known that many German forests were
being destroyed by acid rain. The environmentalist German Green Party,
founded in 1980, won representation in the Bundestag (national
parliament) for the first time in 1983 and since then has campaigned
for stricter environmental regulations. By the end of the 20th century,
the party had joined a coalition government and was responsible for
developing and implementing Germany's extensive environmental policies.
As a group, Germany, The Netherlands, and Denmark—the so-called “green
troika”—established themselves as leading innovators in environmental
law.

Belarusian soldiers checking for radiation in tomatoes brought from Ukraine, near the Chernobyl …AFP/Corbis

During the 1980s the “transboundary effects” of
environmental pollution in individual countries spurred negotiations on
several international environmental conventions. The effects of the
1986 accident at the nuclear power plant at Chernobyl in Ukraine (then
part of the Soviet Union) were especially significant. European
countries in the pollution's downwind path were forced to adopt
measures to restrict their populations' consumption of water, milk,
meat, and vegetables. In Austria traces of radiation were found in
cow's milk as well as in human breast milk. As a direct result of the
Chernobyl disaster, two international agreements—the Convention on
Early Notification of a Nuclear Accident and the Convention on
Assistance in the Case of Nuclear Accident or Radiological Emergency,
both adopted in 1986—were rapidly drafted to ensure notification and
assistance in the event of a nuclear accident. In the following decade
a Convention on Nuclear Safety (1994) established incentives for
countries to adopt basic standards for the safe operation of land-based
nuclear power plants.

There are often conflicting data about the
environmental impact of human activities, and scientific uncertainty
often has complicated the drafting and implementation of environmental
laws and regulations, particularly for international conferences
attempting to develop universal standards. Consequently, such laws and
regulations usually are designed to be flexible enough to accommodate
changes in scientific understanding and technological capacity. The
Vienna Convention for the Protection of the Ozone Layer (1985), for
example, did not specify the measures that signatory states were
required to adopt to protect human health and the environment from the
effects of ozone depletion, nor did it mention any of the substances
that were thought to damage the ozone layer. Similarly, the Framework
Convention on Climate Change, or Global Warming Convention, adopted by
178 countries meeting in Rio de Janeiro at the 1992 United Nations
Conference on Environment and Development (popularly known as the
“Earth Summit”), did not set binding targets for reducing the emission
of the “greenhouse” gases thought to cause global warming.

In 1995 the Intergovernmental Panel on Climate
Change, which was established by the World Meteorological Organization
and UNEP to study changes in the Earth's temperature, concluded that
“the balance of evidence suggests a discernible human influence on
global climate.” Although cited by environmentalists as final proof of
the reality of global warming, the report was faulted by some critics
for relying on insufficient data, for overstating the environmental
impact of global warming, and for using unrealistic models of climate
change. Two years later in Kyoto, Japan, a conference of signatories to
the Framework Convention on Climate Change adopted the Kyoto Protocol,
which featured binding emission targets for developed countries. The
protocol authorized developed countries to engage in emissions trading
in order to meet their emissions targets. Its market mechanisms
included the sale of “emission reduction units,” which are earned when
a developed country reduces its emissions below its commitment level,
to developed countries that have failed to achieve their emission
targets. Developed countries could earn additional emission reduction
units by financing energy-efficient projects (e.g., clean-development
mechanisms) in developing countries. Since its adoption, the protocol
has encountered stiff opposition from some countries, particularly the
United States, which has failed to ratify it.

Environmental law exists at many levels and is
only partly constituted by international declarations, conventions, and
treaties. The bulk of environmental law is statutory—i.e., encompassed
in the enactments of legislative bodies—and regulatory—i.e., generated
by agencies charged by governments with protection of the environment.

In addition, many countries have included some
right to environmental quality in their national constitutions. Since
1994, for example, environmental protection has been enshrined in the
German Grundgesetz (“Basic Law”), which now states that the government
must protect for “future generations the natural foundations of life.”
Similarly, the Chinese constitution declares that the state “ensures
the rational use of natural resources and protects rare animals and
plants”; the South African constitution recognizes a right to “an
environment that is not harmful to health or well-being; and to have
the environment protected, for the benefit of present and future
generations”; the Bulgarian constitution provides for a “right to a
healthy and favourable environment, consistent with stipulated
standards and regulations”; and the Chilean constitution contains a
“right to live in an environment free from contamination.”

Much environmental law also is embodied in the
decisions of international, national, and local courts. Some of it is
manifested in arbitrated decisions, such as the Trail Smelter
arbitration (1941), which enjoined the operation of a smelter located
in British Columbia, Canada, near the international border with the
U.S. state of Washington and held that “no State has the right to use
or permit the use of its territory in such a manner as to cause injury
by fumes in or to the territory of another or the properties or persons
therein.” Some environmental law also appears in the decisions of
national courts. For example, in Scenic Hudson Preservation Conference v. Federal Power Commission
(1965), a U.S. federal appeals court voided a license granted by the
Federal Power Commission for the construction of an environmentally
damaging pumped-storage hydroelectric plant (i.e., a plant that would
pump water from a lower to an upper reservoir) in an area of stunning
natural beauty, demonstrating that the decisions of federal agencies
could be successfully challenged in the courts. Significant local
decisions included National Audubon Society v. Superior Court
(1976), in which the California Supreme Court dramatically limited the
ability of the Los Angeles to divert water that might otherwise fill
Mono Lake in California's eastern desert.

Most environmental law falls into a general
category of laws known as “command and control.” Such laws typically
involve three elements: (1) identification of a type of environmentally
harmful activity, (2) imposition of specific conditions or standards on
that activity, and (3) prohibition of forms of the activity that fail
to comply with the imposed conditions or standards. The United States
Federal Water Pollution Control Act (1972), for example, regulates
“discharges” of “pollutants” into “navigable waters of the United
States.” All three terms are defined in the statute and agency
regulations and together identify the type of environmentally harmful
activity subject to regulation. In 1983 Germany passed a national
emission-control law that set specific air emission thresholds by power
plant age and type. Almost all environmental laws prohibit regulated
activities that do not comply with stated conditions or standards. Many
make a “knowing” (intentional) violation of such standards a crime.

The most obvious forms of regulated activity
involve actual discharges of pollutants into the environment (e.g.,
air, water, and groundwater pollution). However, environmental laws
also regulate activities that entail a significant risk of discharging
harmful pollutants (e.g., the transportation of hazardous waste, the
sale of pesticides, and logging). For actual discharges, environmental
laws generally prescribe specific thresholds of allowable pollution;
for activities that create a risk of discharge, environmental laws
generally establish management practices to reduce that risk.

The standards imposed on actual discharges
generally come in two forms: (1) environmental-quality, or ambient,
standards, which fix the maximum amount of the regulated pollutant or
pollutants tolerated in the receiving body of air or water, and (2)
emission, or discharge, standards, which regulate the amount of the
pollutant or pollutants that any “source” may discharge into the
environment. Most comprehensive environmental laws impose both
environmental-quality and discharge standards and endeavour to
coordinate their use to achieve a stated environmental-quality goal.
Environmental-quality goals can be either numerical or narrative.
Numerical targets set a specific allowable quantity of a pollutant
(e.g., 10 micrograms of carbon monoxide per cubic metre of air measured
over an eight-hour period). Narrative standards require that the
receiving body of air or water be suitable for a specific use (e.g.,
swimming).

The management practices prescribed for
activities that create a risk of discharge are diverse and
context-specific. The United States Resource Conservation and Recovery
Act (1991), for example, requires drip pads for containers in which
hazardous waste is accumulated or stored, and the United States Oil
Pollution Act (1990) mandates that all oil tankers of a certain size
and age operating in U.S. waters be double-hulled.

Another type of activity regulated by
command-and-control legislation is environmentally harmful trade. Among
the most-developed regulations are those on trade in wildlife. The
Convention on International Trade in Endangered Species (CITES, 1973),
for example, authorizes signatories to the convention to designate
species “threatened with extinction which are or may be affected by
trade.” Once a plant or animal species has been designated as
endangered, countries generally are bound to prohibit import or export
of that species except in specific limited circumstances. In 1989
listing of the African elephant as a protected species effectively
prohibited most trade in African ivory, which was subsequently banned
by Kenya and the EC. By this time the United States already had banned
trade in African ivory, listing the African elephant as a threatened
species under its Federal Endangered Species Act (1978). Despite these
measures, some countries either failed to prohibit ivory imports (e.g.,
Japan) or refused to prohibit ivory exports (e.g., Botswana, Namibia,
South Africa, and Zimbabwe), and elephants continued to face danger
from poachers and smugglers.

Environmental assessment mandates are another
significant form of environmental law. Such mandates generally perform
three functions: (1) identification of a level or threshold of
potential environmental impact at which a contemplated action is
significant enough to require the preparation of an assessment, (2)
establishment of specific goals for the assessment mandated, and (3)
setting of requirements to ensure that the assessment will be
considered in determining whether to proceed with the action as
originally contemplated or to pursue an alternative action. Unlike
command-and-control regulations, which may directly limit discharges
into the environment, mandated environmental assessments protect the
environment indirectly by increasing the quantity and quality of
publicly available information on the environmental consequences of
contemplated actions. This information potentially improves the
decision making of government officials and increases the public's
involvement in the creation of environmental policy.

The United States National Environmental Policy
Act (1969) requires the preparation of an environmental impact
statement for any “major federal action significantly affecting the
quality of the human environment.” The statement must analyze the
environmental impact of the proposed action and consider a range of
alternatives, including a so-called “no-action alternative.” The
statute and regulations imposed by the Council on Environmental
Quality, which was established under the 1969 act to coordinate federal
environmental initiatives, require federal agencies to wait until
environmental impact statements have been completed before taking
actions that would preclude alternatives. Similarly, the European Union
(EU) requires an environmental impact assessment for two types of
projects. So-called “annex-I Projects” (e.g., oil refineries, toxic
waste landfills, and thermal power stations with heat output of 300 or
more megawatts) are generally subject to the requirement, and “annex-II
Projects” (e.g., activities in chemical, food, textile, leather, wood,
and paper industries) are subject to an environmental impact assessment
only where “member states consider that their characteristics so
require.” Such assessments must describe and evaluate the direct and
indirect effects of the project on humans, fauna, flora, soil, water,
air, climate, and landscape and the interaction between them.

The use of economic instruments to create
incentives for environmental protection is a popular form of
environmental law. Such incentives include pollution taxes, subsidies
for clean technologies and practices, and the creation of markets in
either environmental protection or pollution. Denmark, The Netherlands,
and Sweden, for example, impose taxes on carbon dioxide emissions, and
the EU has debated whether to implement such a tax at the supranational
level to combat climate change. In the United States, water pollution
legislation passed in 1972 provided subsidies to local governments to
upgrade publicly owned sewage treatment plants. In 1980 the U.S.
government, prompted in part by the national concern inspired by
industrial pollution in the Love Canal neighbourhood in Niagara Falls,
New York, created a federal “superfund” that used general revenues and
revenue from taxes on petrochemical feedstocks, crude oil, and general
corporate income to finance the cleanup of more than 1,000 sites
polluted by hazardous substances.

By the 1990s, “tradable allowance schemes”, which
permit companies to buy and sell “pollution credits,” or legal rights
to produce specified amounts of pollution, had been implemented in the
United States. The most comprehensive and complex such program, created
as part of the 1990 Clean Air Act, was designed to reduce overall
sulfur dioxide emissions by fossil-fuel-fired power plants. According
to proponents, the program would provide financial rewards to cleaner
plants, which could sell their unneeded credits on the market, and
allow dirtier plants to stay in business while they converted to
cleaner technologies.

A final method of environmental protection is the
setting aside of lands and waters in their natural state. In the United
States, for example, the vast majority of the land owned by the federal
government (about one-third of the total land area of the country) can
be developed only with the approval of a federal agency. Europe has an
extensive network of national parks and preserves on both public and
private land, and there are extensive national parks in southern and
eastern Africa in which wildlife is protected. Arguably, the large body
of law that regulates use of public lands and publicly held resources
is “environmental law.” Some, however, maintain that it is not.

Many areas of law can be characterized as both
“set aside” and regulatory. For example, international efforts to
preserve wetlands have focused on setting aside areas of ecological
value, including wetlands, and on regulating their use. The Ramsar
Convention provides that wetlands are a significant “economic,
cultural, scientific and recreational” resource, and a section of the
Clean Water Act, the primary U.S. law for the protection of wetlands,
contains a prohibition against unpermitted discharges of “dredge and
fill material” into any “waters of the United States.”

The design and application of modern
environmental law have been shaped by a set of principles and concepts
outlined in publications such as Our Common Future (1987), published by the World Commission on Environment and Development, and the Earth Summit's Rio Declaration (1992).

As discussed above, environmental law regularly
operates in areas complicated by high levels of scientific uncertainty.
In the case of many activities that entail some change to the
environment, it is impossible to determine precisely what effects the
activity will have on the quality of the environment or on human
health. It is generally impossible to know, for example, whether a
certain level of air pollution will result in an increase in mortality
from respiratory disease, whether a certain level of water pollution
will reduce a healthy fish population, or whether oil development in an
environmentally sensitive area will significantly disturb the native
wildlife. The precautionary principle requires that, if there is a
strong suspicion that a certain activity may have environmentally
harmful consequences, it is better to control that activity now rather
than to wait for incontrovertible scientific evidence. This principle
is expressed in the Rio Declaration, which stipulates that, where there
are “threats of serious or irreversible damage, lack of full scientific
certainty shall not be used as a reason for postponing cost-effective
measures to prevent environmental degradation.” In the United States
the precautionary principle was incorporated into the design of
habitat-conservation plans required under the aegis of the Endangered
Species Act. In 1989 the EC invoked the precautionary principle when it
banned the importation of U.S. hormone-fed beef, and in 2000 the
organization adopted the principle as a “full-fledged and general
principle of international law.” In 1999 Australia and New Zealand
invoked the precautionary principle in their suit against Japan for its
alleged overfishing of southern bluefin tuna.

Although much environmental legislation is
drafted in response to catastrophes, preventing environmental harm is
cheaper, easier, and less environmentally dangerous than reacting to
environmental harm that already has taken place. The prevention
principle is the fundamental notion behind laws regulating the
generation, transportation, treatment, storage, and disposal of
hazardous waste and laws regulating the use of pesticides. The
principle was the foundation of the Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and their Disposal (1989),
which sought to minimize the production of hazardous waste and to
combat illegal dumping. The prevention principle also was an important
element of the EC's Third Environmental Action Programme, which was
adopted in 1983.

Worker cleaning a rock on the beach of Green Island, Alaska, after the Exxon …Natalie Forbes/Corbis

Since the early 1970s the “polluter pays”
principle has been a dominant concept in environmental law. Many
economists claim that much environmental harm is caused by producers
who “externalize” the costs of their activities. For example, factories
that emit unfiltered exhaust into the atmosphere or discharge untreated
chemicals into a river pay little to dispose of their waste. Instead,
the cost of waste disposal in the form of pollution is borne by the
entire community. Similarly, the driver of an automobile bears the
costs of fuel and maintenance but externalizes the costs associated
with the gases emitted from the tailpipe. Accordingly, the purpose of
many environmental regulations is to force polluters to bear the real
costs of their pollution, though such costs often are difficult to
calculate precisely. In theory, such measures encourage producers of
pollution to make cleaner products or to use cleaner technologies. The
“polluter pays” principle underlies U.S. laws requiring the cleanup of
releases of hazardous substances, including oil. One such law, the Oil
Pollution Act (1990), was passed in reaction to the spillage of some 11
million gallons (41 million litres) of oil into Prince William Sound in
Alaska in 1989. The “polluter pays” principle also guides the policies
of the EU and other governments throughout the world. A 1991 ordinance
in Germany, for example, held businesses responsible for the costs of
recycling or disposing of their products' packaging, up to the end of
the product's life cycle; however, the German Federal Constitutional
Court struck down the regulation as unconstitutional. Such policies
also have been adopted at the regional or state level; in 1996 the U.S.
state of Florida, in order to protect its environmentally sensitive
Everglades region, incorporated a limited “polluter pays” provision
into its constitution.

Environmental protection requires that due
consideration be given to the potential consequences of environmentally
fateful decisions. Various jurisdictions (e.g., the United States and
the EU) and business organizations (e.g., the U.S. Chamber of Commerce)
have integrated environmental considerations into their decision-making
processes through environmental-impact-assessment mandates and other
provisions.

Decisions about environmental protection often
formally integrate the views of the public. Generally, government
decisions to set environmental standards for specific types of
pollution, to permit significant environmentally damaging activities,
or to preserve significant resources are made only after the impending
decision has been formally and publicly announced and the public has
been given the opportunity to influence the decision through written
comments or hearings. In many countries citizens may challenge in court
or before administrative bodies government decisions affecting the
environment. These citizen lawsuits have become an important component
of environmental decision making at both the national and the
international level.

Public participation in environmental decision
making has been facilitated in Europe and North America by laws that
mandate extensive public access to government information on the
environment. Similar measures at the international level include the
Rio Declaration and the 1998 Århus Convention, which committed the 40
European signatory states to increase the environmental information
available to the public and to enhance the public's ability to
participate in government decisions that affect the environment. During
the 1990s the Internet became a primary vehicle for disseminating
environmental information to the public.

Sustainable development is an approach to
economic planning that attempts to foster economic growth while
preserving the quality of the environment for future generations.
Despite its enormous popularity in the last two decades of the 20th
century, the concept of sustainable development proved difficult to
apply in many cases, primarily because the results of long-term
sustainability analyses depend on the particular resources focused
upon. For example, a forest that will provide a sustained yield of
timber in perpetuity may not support native bird populations, and a
mineral deposit that will eventually be exhausted may nevertheless
support more or less sustainable communities. Sustainability was the
focus of the 1992 Earth Summit and later was central to a multitude of
environmental studies.

One of the most important areas of the law of
sustainable development is ecotourism. Although tourism poses the
threat of environmental harm from pollution and the overuse of natural
resources, it also can create economic incentives for the preservation
of the environment in developing countries and increase awareness of
unique and fragile ecosystems throughout the world. In 1995 the World
Conference on Sustainable Tourism, held on the island of Lanzarote in
the Canary Islands, adopted a charter that encouraged the development
of laws that would promote the dual goals of economic development
through tourism and protection of the environment. Two years later, in
the Malé Declaration on Sustainable Tourism, 27 Asian-Pacific countries
pledged themselves to a set of principles that included fostering
awareness of environmental ethics in tourism, reducing waste, promoting
natural and cultural diversity, and supporting local economies and
local community involvement. Highlighting the growing importance of
sustainable tourism, the World Tourism Organization declared 2002 the
International Year of Ecotourism.

Although numerous international environmental
treaties have been concluded, effective agreements remain difficult to
achieve for a variety of reasons. Because environmental problems ignore
political boundaries, they can be adequately addressed only with the
cooperation of numerous governments, among which there may be serious
disagreements on important points of environmental policy. Furthermore,
because the measures necessary to address environmental problems
typically result in social and economic hardships in the countries that
adopt them, many countries, particularly in the developing world, have
been reluctant to enter into environmental treaties. Since the 1970s a
growing number of environmental treaties have incorporated provisions
designed to encourage their adoption by developing countries. Such
measures include financial cooperation, technology transfer, and
differential implementation schedules and obligations.

The greatest challenge to the effectiveness of
environmental treaties is compliance. Although treaties can attempt to
enforce compliance through mechanisms such as sanctions, such measures
usually are of limited usefulness, in part because countries in
compliance with a treaty may be unwilling or unable to impose the
sanctions called for by the treaty. In general, the threat of sanctions
is less important to most countries than the possibility that by
violating their international obligations they risk losing their good
standing in the international community. Enforcement mechanisms other
than sanctions have been difficult to establish, usually because they
would require countries to cede significant aspects of their national
sovereignty to foreign or international organizations. In most
agreements, therefore, enforcement is treated as a domestic issue, an
approach that effectively allows each country to define compliance in
whatever way best serves its national interest. Despite this
difficulty, international environmental treaties and agreements are
likely to grow in importance as international environmental problems
become more acute.

Many areas of international environmental law
remain underdeveloped. Although international agreements have helped to
make the laws and regulations applicable to some types of
environmentally harmful activity more or less consistent in different
countries, those applicable to other such activities can differ in
dramatic ways. Because in most cases the damage caused by
environmentally harmful activities cannot be contained within national
boundaries, the lack of consistency in the law has led to situations in
which activities that are legal in some countries result in illegal or
otherwise unacceptable levels of environmental damage in neighbouring
countries.

This problem became particularly acute with the
adoption of free trade agreements beginning in the early 1990s. The
North American Free Trade Agreement (NAFTA), for example, resulted in
the creation of large numbers of maquiladoras—factories jointly owned
by U.S. and Mexican corporations and operated in Mexico—inside a
60-mile- (100-km) wide free trade zone along the U.S.-Mexican border.
Because Mexico's government lacked both the resources and the political
will to enforce the country's environmental laws, the maquiladoras were
able to pollute surrounding areas with relative impunity, often dumping
hazardous wastes on the ground or directly into waterways, where they
were carried into U.S. territory. Prior to NAFTA's adoption in 1992,
the prospect of problems such as these led negotiators to append a
so-called “side agreement” to the treaty, which pledged environmental
cooperation between the signatory states. Meanwhile, in Europe concerns
about the apparent connection between free trade agreements and
environmental degradation fueled opposition to the Maastricht Treaty,
which created the EU and expanded its jurisdiction.

International environmental law is the subject of Alain Verbeke (ed.), Property and Trust Law (2000– ), in the series International Encyclopedia of Laws; and William H. Rodgers, Jr., Environmental Law, 2nd ed. (1994).Environmental laws are explored from a comparative perspective in Alexander J. Bolla and Ted L. McDorman (eds.), Comparative Asian Environmental Law Anthology (1999); Dorothy Gillies, A Guide to EC Environmental Law (1999); and Gerd Winter (ed.), European Environmental Law: A Comparative Perspective (1996).Environmental statutes are discussed in Roger W. Findley and Daniel A. Farber, Environmental Law in a Nutshell, 5th ed. (2000); and Sheldon M. Novick, Donald W. Stever, and Margaret G. Mellon (eds.), Law of Environmental Protection, 3 vol. (1987– ).Discussions of important international issues can be found in Robert L. Fischman, Maxine I. Lipeles, and Mark S. Squillace (eds.), An Environmental Law Anthology (1996); Richard L. Revesz (ed.), Foundations of Environmental Law and Policy (1997); and Dale D. Goble and Eric T. Freyfogle, Wildlife Law (2002).A treatise on environmental law reform is Celia Campbell-Mohn (ed.), Sustainable Environmental Law: Integrating Natural Resource and Pollution Abatement Law from Resources to Recovery (1993).